Giving value to people's knowledge

Revival of local wisdom is not about to happen by the proposed TK treaty alone.

A World Intellectual Property Organisation (WIPO) committee is poised at a critical juncture in its process towards a global treaty on traditional knowledge (TK). This international law in-the-making is of relevance to not only individual practitioners or local communities who embody it, but also of interest to local industry and large private entities engaged in bioprospecting as well as R&D in products and services derived from genetic resources and their associated know-how.

WIPO’s stated objective is to develop a balanced and effective international intellectual property (IP) system. But internationalising the system and in that process harmonising law and practice on certain IP issues is seen by some as part of the problem. Particularly since there are many local customary rules on TK. Countries with vast people's know-how on genetic resources have been pointing for years how IP laws, such as those that grant wrongful patents on TK, lead to misappropriation that needs to be addressed by international law. Yet WIPO has in response taken it upon itself to develop international IP law on the subject of TK.

This is being done through an Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) set up by WIPO in 2001.  While over the years the processes and documents of the IGC have generated much debate and awareness on issues of all three inter-connected areas. The WIPO IGC's jubilee session – IGC 25, is currently underway July 15 to 24, 2013 in Geneva, Switzerland at the WIPO headquarters. Its decisions will have implications for the future of traditional knowledge-systems in countries like India.

Legal instrument

Through IGC, WIPO has been facilitating the conduct of international negotiations towards reaching consensus on the text of an international legal instrument or instruments, one each on genetic resources (GR), traditional cultural expressions (TCE) and TK. Draft texts, bracketed though they may be – as concrete proposals to WIPO’s General Assembly in September 2013 are ready. And the IGC needs to indicate to the WIPO general assembly if and when to convene a diplomatic conference whereby the drafts can be made into a legally binding treaty amongst countries.

WIPO is a UN body. For that reason also it is not devoid of the politics amongst the world's nations that the UN system itself reflects. Powerful and big-budget governments can come to bear on issues. Moreover, the issue at hand itself has divergent interests on the table, ranging from user/accessor countries (like USA) that insist TK can be protected by an IP system. It also does not want any burden on its 'inventors' to have to disclose the origin of the GR or TK as a pre-requisite built into patent application procedures. For this also puts them under a legal obligation to share benefits and comply with any other terms and conditions that a national access law of the provider country may impose.
Unfortunately, there is also still no common message resonating from the different developing countries. For instance, much of the African nations do not agree with India that the end beneficiaries should be identified as 'the nation'. Instead they are more inclined that the beneficiaries of protection of TK should include “indigenous peoples”, or “traditional communities”.

The Indian delegation is of the view that much work has been done in the last 15 years through WIPO processes both inside and outside the IGC and with the fairly mature texts as of date the time is right to take the next step. India is therefore suggesting that the ongoing IGC session must recommend that the WIPO General Assembly decide on a Diplomatic Conference in 2014. In response to the US suggestion to extend the IGC by another two years, merely for the purpose of further fact-based studies on impacts of compulsory disclosure, India alerts that too much of analysis can lead to paralysis.
The Indian Patent Act has provided safeguards against the patenting of TK per se. But safeguarding TK practices and their original holders has to be the overall approach in all other workings of the state. Meanwhile, the grant of approvals for India's knowledge and/or the trade in genetic resources has been institutionalised through the Biological Diversity Act, 2002.

However, revival of (lost and existing) local wisdom is not about to happen by the proposed TK treaty alone. And the big question is if it will actually check 'biopiracy'. Many popular movements are wary of the proposed treaty allowing governments in the name of protection to tread into areas, which they had either chosen not to enter into or been forced to keep out.